IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15.02.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.9104 of 2009 and M.P.NO.1 OF 2009 P.Arjunan .. Petitioner Vs. 1.The Govt. of Tamil Nadu, rep. By its Secretary to Government, Food, Cooperation & Consumer Protection Department, Fort St. George, Chennai-600 009. 2.The Joint Registrar of Cooperative Society, Tiruvannamalai Circle/ The Common Cadre Authority, O/o Deputy Registrar of Cooperative Society, Cheyyar, Tiruvannamalai District. 3.Kozhappallur Primary Agricultural Credit Society, Cheyyar, Tiruvannamalai District. Rep. By its Special Officer .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records of the second respondent pertaining to his proceedings in Na.Ka.No.7204/2008 PACB and quash the order, dated 3.3.2009 and consequently forbear the second respondent from proceeding any further in pursuant to the charge memo issued by him vide his proceedings in Na.Ka.No.7204/2008 PACB dated 9.6.2008. For Petitioner : Mr.R.Sivakumar For Respondents : Mr.A.Arumugam, Spl.G.P. For RR1 and 2 Mr.M.S.Palanisamy for R3 - - - - ORDER
Heard both sides. The petitioner has come forward to file the present writ petition seeking to challenge the order of the second respondent, i.e. Joint Registrar of Cooperative Society, Tiruvannamalai Circle and the Common Cadre Authority, dated 3.3.2009 and after setting aside the same, consequently to forbear the second respondent from proceeding any further in pursuant to the charge memo issued by him vide his proceedings, dated 9.6.2008. The writ petition was admitted on 14.5.2009. Pending the writ petition, this court granted an interim injunction for a period of eight weeks.
2.It is seen from the records that the petitioner was working as Secretary of the third respondent Cooperative Society. Subsequent to the introduction of Common Cadre System vide G.O.Ms.No.55, Cooperation, Food and Consumer Protection Department, dated 24.03.2000, the post of the Secretary of Primary Agricultural Cooperative Banks (PACB) was made into the Common Cadre by virtue of power under Section 75 of the Tamil Nadu Cooperative Societies Act, 1983Therefore, the second respondent being the Common Cadre Authority framed charges against the petitioner, by a charge memo, dated 9.6.2008. The petitioner gave a reply, dated 18.7.2008.
3.In the meanwhile, the first respondent State issued an Ordinance No.8 of 2008 bringing certain amendments to the Tamil Nadu Cooperative Societies Act, 1983 with effect from 21.10.2008. By the said ordinance, Chapter XIV-A was sought to be inserted into the Tamil Nadu Cooperative Societies Act. The said Chapter XIV-A provides special provisions applicable to Short Term Cooperative Credit Structure Societies. The term “short term co-operative credit structure society” ass defined under Section 136-C(g) includes primary agricultural credit society. Under Section 136-B, this chapter will have overriding effect over the other chapters of the very same Act.
4.Section 136-D(2) reads as follows”
“A short term co-operative credit structure society shall have autonomy in all financial and internal administrative matters including the following areas:-
(i)interest rates on deposits and loans in conformity with the guidelines issued by the Reserve Bank;
(ii)borrowing and investments;
(iii)loan policies and decisions on individual loan;
(iv)personnel policy, staffing, recruitment, posting and remuneration to staff; and
(v)internal control systems, appointment of auditors and remuneration for the audit.”
5.Section 136-D(10) provides as follows:
“The Government or the Registrar shall have no powers to direct any short term co-operative credit structure society to contribute to any fund other than those required for improving its net worth or own funds.”
6.Section 136-D(23) reads as follows:
“There shall be no cadre system in short term co-operative credit structure society and cadre system in such society shall be abolished.”
7.Section 136-D(25) reads as follows:
“The Government or the Registrar shall not do anything or take action or issue any order or direction which may have the effect of, curtailing any of the freedoms or powers given under this Chapter to any short term co-operative credit structure society or adversely affecting other provisions of this Chapter”.
8.Subsequent to the ordinance, it has been made into Act after it has been passed by the Tamil Nadu legislature. The Tamil Nadu Co-operative Societies (Third Amendment) Act, 2008 (Bill No.64 of 2008) was replaced with the ordinance with effect from the original date of promulgation on 21.10.2008. It is further stated by the petitioner that an explanation was sought for from the petitioner on 3.3.2009 by the second respondent. An enquiry report, dated 27.1.2009 was also submitted holding that the petitioner was guilty of two charges and the third charge was dropped. On the basis of the enquiry report, the second respondent gave a notice, asking his explanation on the report. It is at this stage, the petitioner has come forward to file the present writ petition.
9.Mr.R.Sivakumar, learned counsel for the petitioner contended that by virtue of introduction of Chapter XIV-A by the ordinance and by the subsequent Act, the proceedings initiated against the petitioner will completely get extinguished. According to the petitioner, as per Section 136-D(2)(iv), this special provision will apply in respect of personnel policy, staffing, recruitment, posting and remuneration to staff. Therefore, disciplinary action initiated against him by the Cadre Authority will also stand vanished. He also stated that by the Act, the Common Cadre System should be abolished and the petitioner is not under the control of the Common Cadre Authority.
10.The learned counsel further stated that by virtue of Section 136-D(25), neither the Government nor the Registrar can do anything or take action or issue any order or direction which may have the effect of curtailing any of the freedoms or powers given under this Chapter to any short term co-operative credit structure society.
11.It must also be noted that subsequently, the Common Cadre system of Secretary of PACB itself came to be abolished vide G.O.Ms.No.122, Co-operation Food and Consumer Protection (CN1) Department, dated 4.7.2008. In that G.O., while repelling the Common Cadre System, in paragraph 8, the Government had observed as follows:
“8.In respect of cases which are pending till the date of issue of the order, the cadre authority shall continue to deal with such cases till its finalization.”
12.The learned counsel for the petitioner contended that since the very common cadre system has been abolished and the power of the Government has been taken away, the question of reserving any further action under the common cadre system may not arise. This court is unable to accept this submission made by the learned counsel for the petitioner. The purpose of introduction of Chapter XIV-A is set out in explanatory statement appended to the ordinance, which is as follows:
“In order to bring improvement in the financial position of the credit societies and to strengthen the short term co-operative credit structure of the Country, a task force was constituted by the Government of India. The task force has suggested implementable action plan for reviving the short term rural co-operative credit structure and to provide financial assistance to certain kinds of co-operative societies. The Government have accepted the recommendations of the task force on revival of short term co-operative credit institutions. Accordingly, the Government have decided to amend the Tamil Nadu Co-operative Societies Act, 1983 (Tamil Nadu Act 30 of 1983), so as to insert a new Chapter applicable to the co-operative credit societies, in the said Act.”
13.A reading of explanatory statement read with the provisions of the Ordinance/Act will show that the Government did not incline to nullify the existing disciplinary action taken against any employee of the society. The notification of common cadre of the Secretary of PACB was issued in terms of Section 75 of the Tamil Nadu Co-operative Societies Act. The present chapter does not take away the power of the Government to create common cadre. Even assuming the present Act by virtue of non-absentee clause found under Section 136-B and 136-D(25), the State Government cannot create common cadre in respect of short term co-operative credit structure society, the Government itself had abolished the common cadre. In the G.O., abolishing the common cadre, the existing disciplinary action has been preserved.
14.At the time when the charge memo was framed against the petitioner, the petitioner was very much part of the common cadre system. He cannot take advantage of insertion of new chapter in the Co-operative Societies Act. The contentions raised are not supportable by the new provisions. On the other hand, G.O.Ms.No.122, dated 4.7.2008 only preserves the right of the society to continue with the disciplinary action.
15.Even as per the Common Cadre Regulations, in case of removal/dismissal and against the order of common cadre authority, an appeal will lie to the Registrar. Therefore, if any order adverse to the petitioner is passed, he has to move the appropriate authority under the Act and not to rush to this court even at the stage of show cause notice by raising untenable contentions.
16.In the light of the above, the writ petition will stand dismissed. However, there will be no order as to costs. There is no impediment for the society to proceed with the disciplinary action taken against the petitioner.
15.02.2010
Index : Yes
Internet : Yes
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To
1.The Secretary to Government,
The Govt. of Tamil Nadu,
Food, Cooperation & Consumer
Protection Department,
Fort St. George,
Chennai-600 009.
2.The Joint Registrar of Cooperative Society,
Tiruvannamalai Circle/
The Common Cadre Authority,
O/o Deputy Registrar of Cooperative Society,
Cheyyar,
Tiruvannamalai District.
3.The Special Officer
Kozhappallur Primary Agricultural
Credit Society,
Cheyyar,
Tiruvannamalai District.
K.CHANDRU, J.
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PRE DELIVERY ORDER IN
W.P.NO.9104 of 2009
15.02.2010